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ConLaw > Freedom of Speech > Flashcards

Freedom of Speech Flashcards

1
Q

Parliament like the Kings had ___ so maybe Const as a way of ___

A

absolute power, protecting freedom

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2
Q

What are two basic ways freedoms protected in Consti

A

structural limits of limited leg powers + Bill of Rights

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3
Q

Bill of Rights only exists because __

A

Anti-Federalists demanded it

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4
Q

Federalist Number 10 Madison basic argument

A

the union (large republic) safeguard against factionalism

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5
Q

Madison envisioned a ___ that would protect the divergent interest of majorities and minorities

A

social structure

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6
Q

Madison thought major source of factionalism is ___

A

unequal distribution of property

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7
Q

What is a faction?

A

group united and adverse to rights of other citizens

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8
Q

What are two ways to cure factionalism?

A

homogenize society (detrimental to liberty) OR control its effects (republicanism)

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9
Q

How to control majority factions?

A

representative govt, refine public views by more temperate electorate

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10
Q

What is weakness of representative govt and how to control

A

betray interests of people BUT larger republics maybe less because elected by more people and greater variety of parties and interests

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11
Q

the primary function of the Bill of Rights is

A

protection from tyranny of the majority

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12
Q

Madison wanted a minimal bill of rights so that it ___

A

would never be violated in emergencies (would make it useless)

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13
Q

What is counterargument to tyranny of majority argument for BoR?

A

expanding Govt power could come at expense of liberty

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14
Q

Blackstone basics on free speech

A

free press essential to free state but doesn’t mean freedom from censure for crim matters

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15
Q

It is okay to punish some speech ex post becuase it is an ___

A

abuse of free will, to preserve order

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16
Q

The Consti rejected the idea of licensing which was ____

A

private institution for licensing prior to pulication

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17
Q

Main idea of Cato Letter 15`

A

freedom of speech as check on tyranny, essential to public liberty

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18
Q

Main idea of Cato letter 38

A

People must be free to criticize the govt, govt is a public trust

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19
Q

Unlike Blackstone. Cato believed __

A

freedom from ex post punishment as long as it doesn’t harm others

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20
Q

Today, prior licensing is ___

A

alive and well

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21
Q

What is US scheme of regulatory licensing?

A

A category of actions is comprehensively barred—unless one receives a license (i.e., permission) from the relevant agency.

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22
Q

What is problematic about regulatory licensing?

A

should be presumption of liberty not restraint, puts burden on person seeking the license

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23
Q

In addition to prior licensing, today there is also a focus on ___

A

punishment after the fact

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24
Q

Problem with both licensing and ex post punishment

A

by expanding coverage of the right (emphasizing both) lose substance

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25
Q

Section 230 rests on the ___

A

CC

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26
Q

First key effect of 230

A

protects websites from liability for people’s posts on them

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27
Q

Second key effect of 230

A

protects website & large providers for taking down stuff (Ham hates)

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28
Q

230 is Consti violation because

A

removes legal obstacles from censoring so companies censor with impunity

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29
Q

Through the 230 immunity, ___

A

Govt privatizes suppression

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30
Q

Counterpoint to 230 liability argument

A

what if it prevents censorship because not exposed to tort liability, not incentivized to take down,

31
Q

key language of 1st amendment

A

Cong shall make no law

32
Q

What is defamation and case

A

NYT v. Sullivan, false statement of fact with actual malice

33
Q

What is obscenity

A

must be in some way erotic (Roth)

34
Q

What are fighting words

A

personally abusive epithets likely to provoke a violent reaction (Chaplinsky)

35
Q

What is inciting a mob

A

state has police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Feiner v. New York.

36
Q

Abrams, Holmes dissent

A

the best test of truth is the power of the thought to get itself accepted in the competition of the market.

37
Q

Cohen v. CA facts

A

entered a courthouse with a jacket that read fuck the draft

38
Q

The Cohen Court of Appeal held that offensive behavior means

A

‘behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace

39
Q

Cohen SC holding

A

w/o more compelling and particularized reason State can’t make this four letter word a criminal offense

40
Q

Cohen reasoning 1

A

conviction rests solely on speech

41
Q

Cohen reasoning 2

A

doesn’t fit into categories of speech Govt can regulate more comprehensively

42
Q

Cohen reasoning 3

A

Gvt. can only shut off discourse solely to protect others from hearing it is if substantial privacy interests are being invaded in an essentially intolerable manner.

43
Q

Cohen reasoning 4

A

discord and tumult necessary side effects of freedom of speech

44
Q

Cohen 5

A

State’s reasoning boundless

45
Q

Cohen sets the precedent that the Courts will not __

A

determine what’s offensive or not

46
Q

Cohen ___ of what counts as speech

A

takes a wide view (wearing a jacket)

47
Q

Blackmun dissent in Cohen argues that wearing a jacket is ___

A

conduct not speech

48
Q

Synder v. Phelps holding

A

Tort award inconsistent with 1st under Hustler

49
Q

Synder facts

A

Westboro Church picketed soldier’s funeral to protest gay rights

50
Q

Synder reason

A

in a public place on a matter of public concern so can’t be restricted even if arouses contempt

51
Q

Hustler facts

A

Hustler magazine ran parody ad depicting evangelist with sexual entendre

52
Q

Hustler holding

A

Public figures can’t recover for IIED without showing defamation

53
Q

Hustler reason 1 & 2`

A

importance of free flow of ideas, SL for publisher for falsity would have chilling effect

54
Q

Hustler reason 3 & 4

A

outrageousness is subjective, chilling effect on satire

55
Q

Post office obscenity debate

A

about limiting a govt service so not repression BUT

56
Q

Williams holding

A

to protect obscene material that has social value so limit scope of obscenity, overturn convictions for sexually graphic but nonobcene material

57
Q

Hudnut says to be obscene it must have __

A

offensive descriptions/depictions of sexual conduct with no serious literary, scientific artistic value

58
Q

Hudnut holding

A

Ordinance discriminates on grounds of content of the speech

59
Q

In Hudnut, the ___ is being judged not the __

A

law, material

60
Q

Hudnut reasons 1 &2

A

city’s porn defintion dif from obscenity, all cultural stimuli provoke unconscious responses

61
Q

Hudnut reason 3

A

Consti doesn’t make truth necessary condition of free speech

62
Q

Hate speech and 1st amendment

A

no general hate speech exception

63
Q

WI v. Mitchell

A

dif between regulating hate speech and punishing some hateful conduct more severely

64
Q

Virginia v. Black holding

A

1st amendment doesn’t protect cross burning, doesn’t protect true threats of violence

65
Q

RAV facts

A

burned a cross on lawn of Black family, charged with violating fighting words

66
Q

RAV holding

A

“The government may not engage in content- or viewpoint-based regulation of expression, even within otherwise ‘unprotected’ categories of expression, like defamation, obscenity, or asserted ‘fighting words.’”

67
Q

RAV held the ordinance unconstitutional because it prohibits __

A

otherwise permitted speech solely based on the basis of the subjects the speech addresses

68
Q

RAV reason 1

A

content based prohibitions are presumptively invalid

69
Q

RAV reason 2

A

Govt cannot regulate use of fighting words based on hostility or favoritism to the view expressed

70
Q

RAV reason 3

A

can’t have special prohibitions on speakers who express views on disfavored subjects

71
Q

RAV reason 4

A

compelling govt interest can only be asserted where necessary to serve the compelling interest, not met here

72
Q

Solzhenitsyn takeawar

A

censoring not just through govt but other institutions and people (social conformity)

73
Q
A

ConLaw (16 decks)

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